Brandly v. American Butter Co.

| N.Y. App. Div. | Feb 5, 1909

Houghton, J.:

In March, 1905, the plaintiff obtained an attachment against the defendant, a foreign corporation, and a levy was made thereunder and the defendant gave an undertaking tó discharge the same. In September, 1908, the defendant moved to discharge the attachment and the levy and cancel the undertaking on the papers upon which the attachment was granted, and from the order granting such " motion the plaintiff appeals.

The principal ground upon which the attachment was set aside and upon which the order is sought to be sustained is that the moving papers did not disclose that the plaintiff was a resident of the State of New York, or that the cause of "action arose therein.

Section 1780 of the Code of Civil Procedure provides that an action against a foreign corporation may be maintained by a resident of the State for any cause, and by a non-resident only under specified conditions, one of which is that the cause of action arose within the State. The moving papers do not allege specifically that the plaintiff was a resident of this State at the time of bringing the action or that the cause of action arose therein. We are of the opinion, however, that by fair implication both of those facts are stated in the plaintiff’s affidavit upon which the attachment was granted.

An attachment is a provisional remedy in an action and subject to certain rules and specific conditions a warrant may be granted to a plaintiff in an action upon such proofs as are satisfactory to the judge granting it. (Code Civ. Proc. § 636.) All that is required is that the information furnished, by the affidavits presented upon the application shall be such that a person of reasonable prudence would be willing to accept and act upon it. (Buell v. Van Camp, 119 N.Y. 160" court="NY" date_filed="1890-01-28" href="https://app.midpage.ai/document/buell-v--van-camp-3585520?utm_source=webapp" opinion_id="3585520">119 N. Y. 160.) Of course, such sworn information must have some probative force and not rest upon hearsay alone, and where facts are alleged upon information the source of the information must be stated and the grounds of belief set forth so that the judge to whom the affidavit is presented may have some proper basis upon which to found his conclusion of satisfaction with the proof. The affidavit in the present case is positive with respect to the. material matters, and the motion to set aside the attachment having been made upon that affidavit alone he, plaintiff, is entitled to all the legitimate inferences and deductions that can be made from .the facts stated. (Stewart v. Lyman, 62 A.D. 182" court="N.Y. App. Div." date_filed="1901-07-01" href="https://app.midpage.ai/document/stewart-v-lyman-5189811?utm_source=webapp" opinion_id="5189811">62 App. Div. 182.)

Beading the affidavit in the light of these rules we think it can be fairly inferred that at the time of the commencement of the action the plaintiff is shown to have been a resident of the State of New York and that the cause of action against the defendant arose within this State. These facts could have been very easily stated and it would serve, no useful purpose to analyze the affidavit and give the reasons for'our conclusion. It is sufficient to say that the fact of residence of the plaintiff is clearly inferable from the affidavit, and that fact being sufficient to sustain the attachment it follows that it was improperly set aside. We also think-the affidavit properly discloses a c'ause of action for the amount claimed. The services are set forth in detail and their value is sworn to. In addition the claim was presented to the board of directors of defendant ' and while they did not act favorably upon it they did not reject it.

Our conclusion is that the order appealed from must be reversed, with ten dollars costs and disbursements, and the attachment, levy and! undertaking restored, and the motion to set aside denied, with ten. dollars costs.

Ingraham, McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.